I’ve covered every opinion in CAAF’s 2011 term except one: United States v. Ali, 71 M.J. 256, No. 12-0008/AR (C.A.A.F. 2012) (CAAFlog case page) (link to slip op.). The case involved a dual Canadian/Iraqi citizen who was a civilian contractor working for U.S. forces as an interpreter in Iraq in 2008. In February of that year, he was involved in verbal and physical altercations with another linguist. He was subsequently placed into pretrial restriction, then pretrial confinement by U.S. Army authorities. He was charged with violations of the UCMJ, and was eventually convicted by a military judge sitting as a general court-martial, pursuant to his pleas in accordance with a pretrial agreement, of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134. He was sentenced to confinement for five months, but pursuant to the pretrial agreement only a sentence of time served (115 days) was approved by the convening authority.
CAAF granted review to determine if jurisdiction existed under Article 2(a)(10) to try Ali by court-martial, and if so, then to decide the constitutionality of such an exercise of jurisdiction. Article 2(a)(10) (10 U.S.C. § 802(a)(10)) extends court-martial jurisdiction to: “In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.” In the penultimate opinion of the term, CAAF ruled unanimously that Ali was subject to a constitutional exercise of court-martial jurisdiction. Judge Erdmann wrote for the court, with Chief Judge Baker and Senior Judge Effron both writing separate concurring opinions.
The opinion was analyzed by MAJ Jeremy Steward on 31(b)log in early August. He observed that CAAF’s finding of a constitutional exercise of jurisdiction “may be quite narrow and limited to the facts of this particular case.” Additionally, Professor Steve Vladeck analyzed the opinion at Lawfare, beginning his analysis with this broadside:
The CAAF’s nominal unanimity as to the result belies the profound flaws with Judge Erdmann’s majority opinion–which, among other things, is yet another example of some court of appeals judges refusing to take the Supreme Court’s decision in Boumediene seriously, embracing instead extreme arguments that not even the Executive Branch has advanced. The far more analytically coherent and defensible justifications for the result can be found in the concurring opinions authored by Chief Judge Baker and Judge Effron—opinions that nevertheless raise some troubling questions of their own.
Professor Vladeck particularly attacks the majority for “unjustifiably discount[ing] Ali’s one very important voluntary connection to the United States–his employment by a U.S. contractor” in determining that Ali is not protected from trial by court-martial by the Fifth and Sixth Amendments. This attack is based on the fact that such employment has formed the basis for prosecution of a foreign national for an offense against another foreign national in U.S. Article III courts, under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §§ 3261-3267). Since CAAF’s opinion in Ali (and Professor Vladeck’s analysis), the Fourth Circuit upheld the MEJA prosecution of a foreign national for an offense against another foreign national based on his status as a military contract employee. United States v. Brehm, __ F.3d __, No. 11-4755 (4th Cir. Aug. 10, 2012).
Using such a connection to affirm an Article III prosecution under MEJA and a court-martial prosecution under Article 2(a)(10) does appear facially inconsistent, but there’s an important distinction between Ali and Brehm that Professor Vladeck overlooks: the fact the MEJA doesn’t apply to citizens of of the host country; a fact key to Judge Erdmann’s opinion:
Leaving aside the fact that MEJA expressly provides for concurrent jurisdiction with courts-martial, the problem this argument presents is that no Article III alternative exists under the facts of this case. While MEJA extends to civilians “employed by or accompanying the Armed Forces,” 18 U.S.C. § 3261(a) (2006), which likely includes non-United States citizens, it does not extend to citizens of the host nation. See 18 U.S.C. § 3267(1)(C), (2)(C) (excepting all “national[s] of or [those] ordinarily resident in the host nation”). Thus, there is no available alternative forum here, and Congress used the “least possible power adequate” to try Ali in this case.”
Ali, slip op. at 34-35 (internal citation omitted) (emphasis added). Moreover, in a footnote to the above paragraph, Judge Erdmann wrote:
In regard to the issue raised in Senior Judge Effron’s separate opinion, Ali, __ M.J. at __ (7) (Effron, S.J., concurring in part and in the result), our holding is limited to the narrow circumstances presented by this case, namely the exercise of court-martial jurisdiction over a dual citizen of the host country and a third country. We do not reach the question of the constitutionality of court-martial jurisdiction over a noncitizen who is not also a host-country national.
Ali, slip op. at 35-36, n. 28 (emphasis added). Ali therefore applies court-martial jurisdiction under Article 2(a)(10) to a non-U.S. citizen civilian only in circumstances where there is no Article III jurisdiction. The court’s opinion specifically disclaims circumstances implicating a jurisdiction-conferring statute (i.e., MEJA). But more importantly, it also disclaims all Supreme Court precedent involving application of court-martial jurisdiction to United States citizens:
Indeed, all of the cases relied upon by Ali for the constitutional limitations on congressional extension of military jurisdiction over civilians involved United States citizens tried by court-martial not in a time of war. None of these cases purported to address the issue before us, which is the constitutionality of military jurisdiction over a noncitizen tried outside of the United States during a contingency operation. Under the circumstances of this case, the concerns raised by the Supreme Court are not applicable.
Ali, slip op. at 24-25 (emphasis added). MAJ Steward’s words come to mind: “this result may be quite narrow and limited to the facts of this particular case.”